Capitolized is a twice-weekly digest that keeps an eye on the representatives you voted for (or against) with expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Want to see Capitolized in your inbox every Tuesday and Friday? Sign up here.
February 7, 2023
The Montana Department of Justice is asking for a funding boost to hire more attorneys and pay legal expenses, citing, among other cost drivers, an increased “volume of constitutional challenges to state laws,” agency officials told a budget subcommittee last week.
Gov. Greg Gianforte’s budget request for the department’s legal services division calls for $2 million over the next biennium for a litigation fund to support the hiring of expert witnesses and outside counsel, pay increased costs “in courts across the nation” and, in some cases, fines and fees awarded in court orders.
The budget also requests just shy of $700,000 over the biennium to hire three civil attorneys, the state lawyers tasked with mounting defenses in legal challenges to bills passed by the Montana Legislature.
“The workload we’ve shouldered the last two years is unsustainable this next go around,” Solicitor General Christian Corrigan told the Joint Subcommittee on Judicial Branch, Law Enforcement, and Justice on Feb. 3.
Corrigan said that the agency is expecting an additional “onslaught of lawsuits based on what the Legislature does this session,” and that the need for three additional positions may be a “conservative estimate.”
“Any time the Legislature does something really significant or remotely controversial, it’s going to be challenged,” he said.
According to agency figures and the Montana Free Press Laws on Trial project, plaintiffs have challenged more than two dozen laws passed in the 2021 session. Corrigan said that’s on top of ongoing litigation concerning laws passed in previous sessions.
He said the civil bureau has only recently filled all of its current positions, though it still lacks a bureau chief. When there have been holes in the bureau’s needs, it has turned to outside counsel, he said.
Indeed, the department on Jan. 1, renewed its contract with Emily Jones, a Billings attorney married to Republican political consultant Jake Eaton, who worked on the election campaigns of both Gianforte and Attorney General Austin Knudsen. Her contract says she will provide supervision, mentorship and “litigation management services” for the civil bureau.
As was the case when she signed her initial contract at the beginning of 2022, Jones will be paid $10,000 per month for no more than 12 months. Jones is listed as an assistant attorney general on the agency’s directory, though spokesperson Kyler Nerison clarified she is still a contractor. The other two civil lawyers listed with the same title — Thane Johnson and Michael Russell — are full-time employees, he said.
Nerison said Jones, generally speaking, is involved in all civil cases being litigated by the DOJ. Her firm logged 1,107.2 hours for the department in 2022, he said.
Nerison told Montana Free Press last year that Jones’ contract was part of a broader effort to strengthen the civil bureau.
Lawmakers, though they didn’t specifically ask about Jones, questioned Corrigan Friday about when the department has turned to outside counsel. He said “there are times where something comes up where we need to hire an outside counsel, either for their expertise or simply because we don’t have enough bandwidth to handle a matter.”
He acknowledged that outside counsel is more costly than in-staff attorneys. Hiring full-time employees could bring down legal expenses over the long run, Corrigan added.
Corrigan oversees the department’s solicitor’s bureau, which challenges — often alongside other states — federal rules, regulations and laws. But he said the lawyers assigned to that division are spending more than half of their time aiding in the defense of state legislation.
In total, the Department of Justice is requesting a 14% increase for the 2025 biennial budget over its baseline appropriation in the 2023 biennium.
Vote Viz
Senate Bill 99, sponsored by Sen. John Fuller, R-Kalispell, to ban gender-affirming care for transgender minors in Montana, passed a preliminary vote in the upper chamber Tuesday, 28-21, with five Republicans joining all Democrats in opposition.
Bill Report
House Bill 268, which would implement a $1,200-per-child tax credit called for by Gov. Greg Gianforte’s budget proposal, was advanced with amendments in a near-unanimous vote by the House Taxation Committee Tuesday. The amendments would phase out the credit for people making more than $50,000 a year and require recipients to submit proof of earned income to qualify for the credit. Democrats said they were concerned the latter provision would exclude non-employed caregivers.
House Bill 280, a Democrat-sponsored measure that would use income tax credits to lighten the property tax burden on Montana homeowners and renters, advanced out of the House Taxation Committee Tuesday on a narrow 11-10 vote.
House Bill 196, sponsored by Rep. Lyn Hellegaard, R-Missoula, passed an initial vote on the House floor Tuesday with 65 yeas and 33 nays. The bill would require county election workers to conduct ballot counts without any breaks — a change that prompted Rep. Ed Stafman, D-Bozeman, to call HB 196 the “count ’til you drop” bill while speaking in opposition. Hellegaard and other supporters countered that the bill would result in more secure, transparent elections.
School’s in Session
A string of Helena middle and high school students gave lawmakers a crash course in science Monday. Testifying before the Senate Education and Cultural Resources Committee, they sought to explain how a bill restricting public school science curriculum to “scientific fact” that is “observable and repeatable” would put them at an academic disadvantage and undermine instruction on a host of widely accepted scientific theories.
What theories exactly? According to Senate Bill 235’s opponents, the challenged subjects would run the gamut: evolution, the big bang, plate tectonics, special relativity, string theory. Students explained that while many lines of scientific thinking may be supported by observable fact, they remain broadly theoretical — grounds for continued debate, testing and peer review. That is, in essence, how science works, driving humanity’s advancements and understanding.
“Not teaching these theories would stifle innovation as we move backward in science education while the rest of the country moves forward,” said Helena seventh grader Greysen Jakes.
Capital High School senior Lindsey Read argued that the potential impacts of SB 235 wouldn’t just be felt in science classrooms. Science “exists throughout a student’s education,” she said, with scientific theories often appearing in math and history classes. For retired Missoula science teacher Rob Jensen, the bill’s restrictions cut deep enough to constitute “the most extreme anti-science legislation I’ve ever seen in this country.”
SB 235 sponsor Sen. Daniel Emrich, R-Great Falls, countered that his proposal was not the existential threat opponents purported it to be. Instead, he said, the bill is an effort to define scientific fact in state law and help students distinguish between fact and theory so they can ask “the right questions.” But public education leaders questioned whether that effort would ultimately prove burdensome, requiring the state to comb through textbooks and lesson plans to ensure compliance. Committee members openly wondered if the bill was even constitutional, or an infringement on the authority of Montana’s Board of Public Education and local school trustees.
Despite the stakes, Montana Federation of Public Employees President Amanda Curtis said she’d “never enjoyed a hearing as much as this,” nodding to the students in the room.
“It is really a perfect crossroads between the science, civics and debate education that our students are receiving in Montana’s excellent public schools.”
—Alex Sakariassen, Reporter
Heard in the Halls
“Transgender ideology is not scientific. The idea that a child can be born into the wrong body … is a metaphysical or a spiritual dogma. There is nothing scientific about it.”
—Sen. John Fuller, R-Kalispell, speaking on the Senate floor Tuesday in his opening remarks on Senate Bill 99. The bill, which would ban gender-affirming health care for transgender minors, passed its second reading on a 28-21 vote.
“They told us, contrary to the title of this bill, that this bill harms them and deprives them of their rights … They shared with us how access to care actually helped them, led them to being able to live their lives in joy, in confidence and in enthusiasm. Who are we to deprive our constituents of their self-determination? Strip them of their access to live their lives fully in the pursuit of happiness?”
—Sen. Andrea Olsen, D-Missoula, reflecting on January testimony from transgender Montanans against SB 99, the “Youth Health Protection Act,” in Tuesday debate on the Senate floor.
Background Reading
Private attorney takes leading role in attorney general’s litigation: This 2022 report delves into the first contract that attorney Emily Jones signed with the Department of Justice (Montana Free Press)
Gianforte requests $2.6 million to defend laws against court challenges: See this story from Montana Public Radio’s Austin Amestoy for more detail on the Department of Justice budget request. (Montana Public Radio)
The governor’s budget request for the Department of Justice
*Some links may require a subscription. Subscribe!